Jashiben Somabhai Vankar vs Rahimkhan Mansurkhan Pathan
2022 Latest Caselaw 10338 Guj

      C/FA/3033/2022                               JUDGMENT DATED: 23/12/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 3033 of 2022


FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

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1     Whether Reporters of Local Papers may be allowed                   No
      to see the judgment ?

2     To be referred to the Reporter or not ?                            No

3     Whether their Lordships wish to see the fair copy                  No
      of the judgment ?

4     Whether this case involves a substantial question                  No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                         JASHIBEN SOMABHAI VANKAR
                                   Versus
                       RAHIMKHAN MANSURKHAN PATHAN
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Appearance:
MR MOHSIN M HAKIM(5396) for the Appellant(s) No. 1
MR GC MAZMUDAR(1193) for the Defendant(s) No. 2
MR HG MAZMUDAR(1194) for the Defendant(s) No. 2
NOTICE SERVED for the Defendant(s) No. 1
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     CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                               Date : 23/12/2022

                              ORAL JUDGMENT

1. Being aggrieved and dissatisfied with the impugned judgment and award passed by the learned Motor Accident Claims Tribunal (Auxi), District Dahod at Limkheda in M.A.C.P. No. 973 of 2017 [Old MACP No. 196 of 2008]

C/FA/3033/2022 JUDGMENT DATED: 23/12/2022

dated 4.12.2019, by which the learned Tribunal has partly allowed the Claim Petition and directed the Opponents to pay jointly and severely a sum of Rs. 68,110/- to the the Appellant / Original Claimant along with simple interest @ 9% p.a. from the date of the claim petition till its realization, the Appellant - Original Claimant has preferred this Appeal under Section 173 of the Motor Vehicle Act, 1988 for enhancement of the award with interest and proportionate costs, on the ground that the judgment and award passed by the learned Tribunal is on lower side, and therefore, the judgment and award passed by the learned Tribunal is absolutely unjust, illegal and improper and contrary to law and facts of the case and evidence.

2. Heard learned Advocate Mr. Mohsin M. Hakim for the Appellant and learned Advocate Mr. G.C.Majmudar for Opponent No.2 - The Oriental Insurance Company Ltd.

3. Learned Advocate for the Appellant submitted that the Appellant is the original claimant, who has filed MACP under Section 166 of the Motor Vehicle Act being MACP No. 973 of 2017 before the learned MACT (Auxi.) District Dahod at Limkheda and Respondent Nos. 1 and 2 are the original opponents.

4. The learned Advocate for the Appellant has submitted that the impugned judgment and award passed by the learned MACT (Auxi.) Dahod at Limkheda is contrary to law and the impugned judgment and award is bad in law. It is submitted that the judgment and award is diametrically against the evidence on record and the learned Tribunal has erred in drawing highly unjustified and unwarranted inference from the evidence on record and it is submitted that the learned Tribunal ought to have drawn just and fair inference from the same. It is submitted that the learned Tribunal has committed material irregularity and illegality and the same has resulted in gross miscarriage of justice. Learned Advocate for the Appellant has further submitted that the learned Tribunal has erred in awarding Rs.68,110/- as against the claim of Rs.2,50,000/- and the learned Tribunal has erred in

C/FA/3033/2022 JUDGMENT DATED: 23/12/2022

considering the income of the Appellant at Rs.2350/- per month only whereas as per the evidence on record and more particularly deposition of the claimant, the learned Tribunal ought to have considered income of the claimant at Rs.4000/- per month. Learned Advocate for the Appellant has further submitted that the learned Tribunal has erred in not considering the prospective future income of the appellant while computing compensation under the head of future loss of income. It is therefore submitted that the learned Tribunal has erred in awarding Rs.2350/- towards actual loss of income considering income of Rs.2350/- for a period of one month only whereas considering the gravity of injuries and resultant disability the learned Tribunal ought to have awarded actual loss of income at least for a period of 12 months and ought to have considered the income at Rs.4000/- per month. The learned Tribunal has erred in awarding Rs.5000/- only towards pain, shock and suffering and also erred in not awarding any amount towards loss of amenities of life. The learned Advocate for the Appellant has further submitted that the learned Tribunal has erred in awarding Rs.5000/- only towards medical expenses and also erred in adopting multiplier of 18 only. It is further submitted that the learned Tribunal has erred in awarding Rs.5000/- only towards special diet, attendant charges and transportation charges and has also erred in awarding interest at 9% only. It is therefore it prayed for enhancement in the amount of compensation on different heads.

5. On all such counts, the learned Advocate for the Appellant has submitted that the impugned judgment and award passed by the learned Tribunal deserves to be modified and the Appellant is entitled for the enhanced amount of compensation.

6. Per contra, learned Advocate for Respondent No.2 - The Oriental Insurance Company Ltd. has heavily contended that the learned Tribunal has rightly arrived at the compensation which is awarded and therefore, prayed that this Hon'ble Court may not interfere with the same.

C/FA/3033/2022 JUDGMENT DATED: 23/12/2022

7. Heard learned Advocates for the respective parties. On perusal of the award by the Tribunal, it is seen that learned Tribunal has considered the age of the Appellant - Jashiben Somabhai Vankar as 18 years. No birth certificate or School Leaving Certificate was produced on record and therefore in the absence of contrary evidence on record, the age of the Appellant was considered as 18 years for the purpose of deciding the multiplier in the case. So far as the income of the injured Appellant is concerned, she has stated in her affidavit that she was doing masonry work and earning Rs.4000/- per month however no income proof is produced on record and therefore considering the minimum wages, the the learned Tribunal has considered her to be unskilled person and considered her monthly income at Rs.2350/-. The learned Tribunal, as per the judgment of the Hon'ble Apex Court in Sarla Verma & ors. Delhi Transport Corporation & Anr. has considered the monthly future loss at Rs.258.50 and yearly income calculated at Rs.3102/- hence under the head of future loss of income it comes to Rs.55,836/-. The learned Tribunal has considered Rs.5000/- as compensation towards pain, shock and suffering and considered Rs.5000/- towards the head of medical expenses and under the head transportation, attendant and diet the learned Tribunal has considered the same at Rs.5000/-. Therefore, the Tribunal has awarded the compensation under different heads as tabulated under:

                Amount (Rs.)               Details of Compensation
        50,760.00                  Future Loss of Income
        5000.00                    Pain, shock and suffering
        5000.00                    Medical Treatment Expenses
        5000.00                    Transportation, Attendants and Diets
        2350.00                    Actual Loss of Income
        68110.00                   Total

8. In the aforesaid backdrop, considering the settled law laid down by the Hon'ble Apex Court as also considering the averments made in the memo of

C/FA/3033/2022 JUDGMENT DATED: 23/12/2022

Appeal as well as the submissions made by the learned Advocate for the Appellant during the course of his arguments, the amount of compensation towards the head under the loss of amenities of life is required to be calculated at Rs,40,000/- and the present Appeal deserves to be allowed partly as per the tabulation shown below and the amount of compensation is required to be modified accordingly:

                   Amount (Rs.)                Details of Compensation
           50,760.00                   Future Loss of Income
           5000.00                     Pain, shock and suffering
           5000.00                     Medical Treatment Expenses
           5000.00                     Transportation, Attendants and Diets
           2350.00                     Actual Loss of Income
           40,000.00                   Loss of Amenities of Life
           108110.00                   Total

8.1 The difference amount shall be deposited within a period of eight weeks.

8.2 The Appellant - Claimant shall be entitled to interest at the rate of 6% per annum on such enhanced amount of compensation from the date of claim petition till realization.

8.3       The rest of the award is not disturbed.

9.        The R&P be sent back forthwith.



                                                                    (A. C. JOSHI,J)
J.N.W